Citation Nr: 1234384
Decision Date: 10/03/12 Archive Date: 10/11/12
DOCKET NO. 10-04 121A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California
THE ISSUES
1. Entitlement to Dependency and Indemnity Compensation under 38 U.S.C.A. § 1318.
2. Entitlement to service connection for cause of the Veteran's death.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
A.M. Ivory, Counsel
INTRODUCTION
The Veteran had active military service from December 1943 to October 1945. The Veteran died on January [redacted], 2009; the appellant is the Veteran's widow.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Oakland, California.
The appellant was scheduled for a hearing before the Board; however, in May 2012 she withdrew her request for a hearing.
A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.
Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002).
The issue of entitlement to service connection for cause of the Veteran's death is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. The Veteran was not continuously rated totally disabled due to service-connected disability, or due to unemployability, for at least 10 years preceding his death; nor was a total evaluation continuously in effect since the date of his discharge from military service and for at least five years immediately preceding his death; nor would he have been in receipt of such compensation in either case, but for clear and unmistakable error in a prior decision, which has not been established here.
2. The Veteran was not a former prisoner of war (POW).
CONCLUSION OF LAW
The criteria for entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318 have not been met. 38 U.S.C.A. § 1318 (West 2002); 38 C.F.R. § 3.22 (2011).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duties to Notify and Assist
As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (211).
Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record that is necessary to substantiate the claim. The appellant should be informed as to what portion of the information and evidence VA will seek to provide, and what portion of such the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).
Certain additional notice requirements attach in the context of a claim for Dependency Indemnity and Compensation (DIC) benefits based on service connection for the cause of death. See Hupp v. Nicholson, 21 Vet. App. 342 (2007). Generally, section 5103(a) notice for a DIC case must include: (1) a statement of the conditions, if any, for which a Veteran was service-connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. The content of the section 5103(a) notice letter will depend upon the information provided in the claimant's application.
Here, the RO sent correspondence in March 2009 that specifically notified the appellant of the information required to comply with the VCAA and with the requirements indicated in Hupp, supra.
The Board finds that all necessary development has been accomplished with respect to the issue decided here, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Significantly, neither the appellant nor her representative has identified, and the record does not otherwise indicate, any additional outstanding evidence that is necessary for a fair adjudication of the claim that has not been obtained.
No further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim herein decided. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Under these circumstances, the Board finds that the appellant is not prejudiced by the Board proceeding, at this juncture, with an appellate decision on the claim herein decided.
II. Analysis
The appellant seeks entitlement to DIC under the provisions of 38 U.S.C.A. § 1318. The Veteran was discharged from service in October 1945 and died in January 2009. At the time of the Veteran's death, he was service-connected for posttraumatic stress disorder (PTSD), rated as 50 percent disabling effective August 21, 2003; residuals of frostbite to the left foot with excision of asteoma of toe nail, rated as 10 percent disabling effective November 30, 1946; right thumb strain, rated as noncompensable effective April 1, 1946; and residuals of a gunshot wound to the left side of the buttocks, rated as noncompensable effective August 21, 2002. Thus, the Veteran's combined evaluation for compensation was noncompensable from April 1, 1946; 10 percent since November 30, 1946; and 60 percent since August 21, 2003. He was also receiving a total disability based upon individual unemployability (TDIU), effective August 21, 2003.
Under 38 U.S.C.A. § 1318, VA death benefits may be paid to a deceased Veteran's surviving spouse in the same manner as if the Veteran's death is service-connected, even though the Veteran died of nonservice-connected causes, if the Veteran's death was not the result of his or her own willful misconduct and at the time of death, the Veteran was receiving, or was entitled to receive, compensation for service-connected disability that was rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death; or was rated totally disabling continuously since the Veteran's release from active duty and for a period of not less than five years immediately preceding death; or was rated by VA as totally disabling for a continuous period of not less than one year immediately preceding death if the Veteran was a former POW who died after September 30, 1999. 38 U.S.C.A. § 1318. The total rating may be either schedular or based upon unemployability. Id.
In essence, the only possible ways of prevailing on a claim for benefits under 38 U.S.C.A. § 1318 are: (1) to meet the statutory duration requirements for a total disability rating at the time of death; (2) to show that such requirements would have been met, but for clear and unmistakable error (CUE) in a previous decision; or (3) to show that service department records in existence at the time of a prior VA decision, which were not previously considered by VA, provide a basis for reopening a claim finally decided during the Veteran's lifetime and for awarding a total service-connected disability rating retroactively.
Based on the evidence of record, the Board finds that the requirements of 38 U.S.C.A. § 1318 for an award of DIC benefits are not met. First, the Veteran did not meet the durational requirement for a total disability rating under 38 U.S.C.A. § 1318. As noted above, the Veteran was discharged from service in October 1945 and died in January 2009. Also noted above, he was not granted a 100 percent schedular rating in the form of a TDIU until August 21, 2003. As such, the Veteran was not rated totally disabled for a continuous period of at least 10 years immediately preceding death; nor was he rated totally disabled continuously since his release from active duty and for a period of not less than five years immediately preceding death. Since the Veteran was not actually rated 100 percent disabled due to a service connected disorder for 10 years prior to his death and given that a TDIU was not actually in effect for 10 years prior to his death, entitlement to DIC under 38 U.S.C.A. § 1318 is denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim on the ground of lack of legal merit). Additionally, the Veteran was not a former POW.
The next issue is whether either of the aforementioned durational requirements for a total rating necessary to satisfy 38 U.S.C.A. § 1318 would have been met, but for CUE in a decision on a claim filed during the Veteran's lifetime. Under the provisions of 38 C.F.R. § 3.105(a), previous determinations that are final and binding, including decisions of the assignment of disability ratings, will be accepted as correct in the absence of clear and unmistakable error. In order for a claim of CUE to be valid, there must have been an error in the prior adjudication of the claim; either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied. However, a claim of CUE has not been made as to the effective date assigned with regard to the Veteran's TDIU nor has the appellant made a claim of CUE to any previous rating decision. Therefore, the appellant does not meet the requirements for DIC under 38 U.S.C.A. § 1318.
In sum, the Board finds that the basic threshold criteria for establishing entitlement to DIC benefits under 38 U.S.C.A. § 1318 are not met. See Rodriguez v. Peake, 511 F.3d 1147 (Fed. Cir. 2008).
In denying the appellant's 38 U.S.C.A. § 1318 DIC benefits claim, the Board does not wish in any way to diminish the Veteran's years of service. Although sympathetic to her claims, the Board is without authority to grant them on an equitable basis and instead is constrained to follow the specific provisions of law. See 38 U.S.C.A. § 7104 (West 2002); Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994).
ORDER
Entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318 is denied.
REMAND
After a careful review of the appellant's claims file the Board finds that further development is warranted for the issue of entitlement to service connection for cause of the Veteran's death.
As noted above, at the time of the Veteran's death he was service-connected for PTSD, rated as 50 percent disabling; residuals of frostbite to the left foot with excision of asteoma of toe nail, rated as 10 percent disabling; right thumb strain, rated as noncompensable; and residuals of a gunshot wound to the left side of the buttocks, rated as noncompensable. According to the Veteran's death certificate, the Veteran died on January [redacted], 2009; the immediate cause of death was listed as aspiration pneumonia and multiple cerebral vascular accidents with other significant conditions listed of acute renal failure and hypertension. The appellant asserts that the Veteran's death, specifically his multiple cerebral vascular accidents, is the result of his service-connected PTSD.
The Board finds that the appellant's claim must be sent for a VA medical opinion to determine if the Veteran's death is the result of his military service, to include his service-connected PTSD.
Prior to any VA medical opinion the RO should obtain any pertinent outstanding treatment records.
Accordingly, the case is REMANDED for the following actions:
(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). Expedited handling is requested.)
1. The RO should take appropriate steps to contact the appellant by letter and request that she provide sufficient information, and if necessary authorization, to enable the RO to obtain any additional pertinent treatment records not currently of record. Based on the appellant's response, the RO should assist her in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file.
The RO should obtain any pertinent outstanding treatment records.
If any records sought are not obtained, the RO should notify the appellant of the records that were not obtained, explain the efforts taken to obtain them, and describe the further action to be taken.
2. The Veteran's claims file should be sent for a VA medical opinion to ascertain the nature and etiology of the Veteran's cause of death, to include if his multiple cerebral vascular accidents are related to his military service. The entire claims file must be made available to the examiner, and the examination report should include discussion of the Veteran's medical history. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail.
The VA examiner should respond to the following questions:
A) Is the cause of the Veteran's death at least as likely as not (50 percent probability or greater) directly related to the Veteran's military service?
B) Is the cause of the Veteran's death at least as likely as not (50 percent probability or greater) proximately due to or aggravated by the Veteran's service-connected disabilities, to specifically include his PTSD?
C) Is it at least as likely as not (50 percent probability or greater) that the Veteran's service-connected disabiliti4es substantially or materially contributed to the Veteran's cause of death?
The examiner should provide a detailed rationale for all opinions express.
3. The RO should review the claims file to ensure that all the foregoing requested development is completed, and, thereafter, arrange for any additional development indicated. The RO should then readjudicate the remaining claim on appeal. If any benefit sought remains denied, the RO should issue an appropriate SSOC (Supplemental Statement of the Case) and provide the appellant and her representative the requisite time period to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the appellant unless she is notified.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).
______________________________________________
J.N. MOATS
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs